In this personal injury case the Claimant made an offer to settle which was rejected by ICBC (the Insurance Corporation of British Columbia). He proceeding to trial and beat his offer by $920. However the Judge was not satisfied that the claimant’s formal offer was one that ICBC ought reasonably to have accepted (Saopaseuth v. Phavongkham, 2015 BCSC 45).
The offer to settle was not broken down into its constituent elements making it difficult to evaluate, according to the judge. There was, therefore, an insufficient basis for the defendant to evaluate whether the $44,000 offer was a genuine compromise or not.The ultimate court award for personal injury  was $44,920.
Rule 9-1(6)(b) permits the court to compare the offer to settle with the final judgment. In this case the award was greater than the offer by only $920, or approximately 2%. The judge points out that, “this marginal difference suggests that little weight should be given to this factor.”
The court found that ICBC had legitimate defences to the claim and the damages for non-pecuniary damages were significantly reduced by new information that was elicited from the claimant’s expert witness in his trial testimony. As the judge went on to state, “The plaintiff also recovered nothing for his claim of lost earning capacity. It is noteworthy that there was competing expert evidence that made quantifying damages difficult. I am satisfied that in view of these matters an award of double costs would unduly punish the defendant…”
Given the above decision and other similar court decisions on double costs it is now very difficult for injury claimants to predict the result of making an offer to settle. The Court seems to be prepared to look beyond the amount offered and take into account post offer events, such as in this case.
The current rules relating to offer to settle in my view may have to be amended to avoid these uncertainties.  Understand more about ICBC offers to settle by watching our short video about how to Settle with ICBC:

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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